Unused and Probably Unusable

Announcing a (hopefully) regularly recurring feature here on U&PU, a science fictional episodic essay, examining the works of Robert Heinlein, with particular attention to Law, Courts, Lawyers, as well as common non-legal themes, features, and characterizations.

(I don't know if I'll be able to hit every Friday, and for that matter when I'm going hot I may have to have supplemental posts - a post-Friday Heinlein Friday, if you will.)

Statement of Purpose

But my intention holds, sitting well in order, to push off, smite the sounding furrows, and blog about what were then newer worlds, and the baths of all the western stars, until I die. Deepest apologies of course to Tennyson. Heinlein was a fan of "Ulysses," it seems; he titled one of his last, fat novels after a line in the poem: To Sail Beyond the Sunset. The penultimate sentence, in fact:

Come, my friends,
'T is not too late to seek a newer world.
Push off, and sitting well in order smite
The sounding furrows; for my purpose holds
To sail beyond the sunset, and the baths
Of all the western stars, until I die.

Good stuff. The protagonist, Maureen Long, mother of the much-storied Lazarus Long, and perhaps a thinly-veiled female version of Heinlein himself, trades quotes with a Dean, in the process each satisfying the other that they Love Good Literature.

The themes of the poem, too, and particularly of those lines, are commonly featured in Heinlein's work. Adventure, traveling, endless exploration, scouting into the unknown, and a happy death while pushing the boundaries.

In my Heinlein posts, I intend to do what I always wanted to do with a webpage, but never had the opportunity to: lay out some of my insights into commonalities, weaknesses, strengths, and intriguing features of Heinlein's work, and invite others to respond. I know not everyone's fond of him; fortunately there's no need to agree with me about the significance or value of RAH's work. If you don't like it, don't read it. Same goes for my posts.

I also wish to draw attention at this time to Tenser, Said the Tensor, which has a marvelous feature on Linguistics in SF, with prominent presence of Heinlein (who in Gulf, Friday, and numerous other stories and novels added a heavy dose of linguistic ideas into the plots, or even scenery, of his fictons). [ed.: are we sure the plural of ficton isn't ficta?] While I invariably read Language Log for the widest possible coverage of pop ling news, T,stT is an outstanding effort in its area.

In the late Senior Circuit Judge Ed Becker's last opinion, he crafted a "masterful" and "compelling" decision (adjectives mine, quotation marks purely to amuse me) - just ask anyone. Anyone, perhaps, except Judge D. Brooks Smith, who penned a dissent, which compained that the decision "plac[ed] this Court at odds with every other federal court of appeals to consider the issue." (hat tip to Howard for the links)

What's the issue? Whether the ministerial exception, which is an exception to Title VII's antidiscrimination rules in the employment setting, is avoided by allegations of discrimination "unrelated to religion."

Here's how the theory goes: surely a church can be "prejudiced" in favor of, say, members of its own religion when considering whom to hire in the deacon spot. Or, it can refuse to hire a homosexual as janitor if it can plausibly argue that such persons are repugnant to their religion, and they therefore needn't be an equal opportunity employer. The alternative to such an exception would impose a heavy burden indeed on the right to selectively associate, long held to be an important part of the right to unimpeded practice of one's religion.

I wonder at the contrast between the majority's position ("We adopt a carefully tailored version of the ministerial exception," slip opinion at p.3) vs. the dissent's position ("I disagree with the majority's fundamental premise that a church's choice choice regarding who performs particular spiritual functions is not necessarily a religious decision." slip op. at p.61).

Well, I can imagine a case where I think DBS is wrong.

Imagine the church leaders saying:

We have before us two equally satisfactory candidates - from a purely doctrinal point of view. Both are excellent, intelligent, well-versed and well-prepared, gorgeous to look at and deeply committed to our religion. I like candidate #2 a little better, in fact, on a purely objective basis; he got slightly higher test scores in middle school. Otherwise, they are nearly identical. Except, one thing. Candidate #2 is a (insert wildly derogative term for a sexual/ racial/ ethnic/ national/ etc. minority), and I really detest and fear those. There's nothing in our religion about them, but I just viscerally dislike them. Based on purely non-religious reasons, I vote we go with candidate #1. Everyone agree?

Now, this is a) a stupid thing to say, and b) bizarrely counterfactual. That's not how things in fact work. But it does illustrate what Circuit Judge Smith denied could ever be, a decision by a church that rested on purely non-religious reasons.

I respect Judge Smith's dissent, which is not as simplistic as my narrow criticism might suggest, and merely quibble with his position that any claim regarding employment under Title VII necessarily "implicate[s] the church's right to select its spiritual leaders," slip op.at p.62 - and that the ministerial exception does not need to have any arguable basis the defendant can point to in "faith, doctrine, or internal regulation" as the majority puts it, slip op. at p.27.

Yet another exciting chapter in the ongoing struggle to define what the First Amendment requirements of non-establishment plus freedom to exercise means, especially when those concepts run up against the requirements of other laws.

The most well-known and eminent judge of the Third Circuit, Edward R. Becker, passed away on Friday afternoon. (NYT obituary; Inquirer obituary; Daily News article shortly before his death) Howard has been especially comprehensive in his coverage, in part because (as a long-time practitioner before and admirer of Becker) he had already posted glowing encomia.

I only saw Judge Becker on the bench once, during oral arguments in the highly visible and temporarily controversial Chester County Courthouse Ten Commandments case. Third Circuit Opinion (pdf); article describing reactions and providing background after Judge Dalzell's decision at the trial level. The late great Stefan Presser argued on the side of the atheist suing to have the commandments covered up or removed. See article noting his reactions after the decision. Alfie Putnam appeared on behalf of the amicus, for whom he filed an attention-getting brief in which he compared the plaintiff to the Taliban. It was a memorable event.

As has already been said far better than I can, condolences go out to Judge Becker's friends, family, and colleagues.

Also worthy of note, on a less somber note, the Tech Law Advisor has posted a particularly glittering Blawg Review. It's "small town newspaper meets ESPN" - and boy is it good. It's got all the best features of a blog review: it's readable, informative, well-organized. Go at once and check out Blawg Review # 58.

This weekend's NYT Magazine will contain "Student Confidential," (TimesSelect subscription required) the latest in The Ethicist (Randy Cohen)'s regular columns.

I could probably post here the entire question without copyright problems, since it was submitted for a public response (although probably not the answer), but I'll summarize instead.

The person who submitted the question, a (student) member of the disciplinary body at a university complains of a practice by the prosecuting body.

During the (quasi-judicial) proceedings, when the accused is not present, members of the administration (equivalent to the prosecutors or the complaining victims, depending on how you see it) have made "nasty comments" about the defendants. The submitter says this prejudices the proceeding.

An internal disciplinary proceeding in a school does not require many of the protections we associate with criminal prosecutions. There's usually no right to counsel, no right against self-incrimination, and only the most basic of procedural guarantees. And, the most severe punishment that can be meted out is usually expulsion.

Nevertheless, as Randy alludes, the school's counsel might take an interest in preventing students from getting railroaded. That's because a grievously flawed process could give an expelled or otherwise punished student a reason to complain. Ex parte communications (ones directly between one of the parties and the arbiter or judge, when the other party is not aware, not present) look bad, particularly when it's a defendant fighting to avoid punishment. (See ex parte communications at the Minnesota Public Utilities Commission - a truly random link, but it presents a good clear description of what they are and when the Commission does and doesn't allow them)

(Not all ex parte communications are improper. In the context of settlement, for example, both sides may need to communicate privately with the Decider - the judge, acting as mediator, or the arbitrator.)

But in this case - face it. Students are litigious (Google search proving my point; see also Overlawyered Schools category; older archive). Ex-students perhaps doubly so (Google search also proving my point).

[A note on my arithmetic; the second search had "about 1.4 million" results. The first had "about 1.95 million." Why don't I retract my (rhetorical) point? Because the entire second group was within the first. If Google results for large numbers were reliable (they're not) then only .55 million of the first search's results would _lack_ the word "former."]

Also see: Christian Student sues for right to hate speech (the Onion).

EoR at The Second Sight hosts the latest iteration of the Skeptics' Circle, and this one is particularly impressive.

This one's theme involves crystals and gems. The title is "The 34th Skeptics' Circle: Critical Thinking Crystallised." Not just posts about rocks; rather, EoR uses the supposed mystical properties of gems as an organizing template, giving the meaning or use of each stone along with a cleverly apt skeptical link.

It's colorful, it's informative, it's got lots of great links, including some particular favorites of mine: The "I, Superman" post (drawing an analogy to argue where the burden of proof should lie, as between theism and atheism), linked under Amethyst in the Skeptics' Circle; and the hilariously titled "Greetings! I travelled a thousand light-years to peer up your ass!" (Blue Chalcedony). Props to plittle at Aurora Walking Vacation, and Sean at God is for Suckers! for two entertaining entries.

But don't just listen to me.

Go read Skeptics' Circle #34!

Chicago, May 10, 2006. (satire)

The news that 4th Circuit Judge J. Michael Luttig was resigning his appointment (Volokh Conspiracy) to become Vice President and General Counsel of Boeing precipitated panic among law students today.

"I've withdrawn my application to clerk for Judge Luttig, and submitted one to Boeing!" announced one anonymous law student amid a flurry of photocopied transcripts, letters of recommendations, and personal statements.

It has been noted that Luttig, #1 feeder for the Supreme Court, provided a significant perk to those who obtained prized clerkships from him. Such a lofty accomplishment "basically guaranteed a second clerkship with Justice Scalia, Thomas, or Kennedy" (Orin Kerr).

The announcement caused three heart attacks among University of Chicago Law students, two panic attacks from Yale students, and was the proximate cause of a Harvard student throwing a telephone across a law journal office.

It is expected that Boeing (press release) will soon experience the most qualified straight-out-of-law-school applicant pool in approximately 30 years.

The Fourth Circuit (Official site, Wikipedia page), for its part, plans to remain strikingly conservative. Except sometimes.

(/satire)

Scandals du jour:

Kennedy's son (that's Ted Kennedy's offspring, D-R.I., rather than the anti-vaccination-hysteria-flogging RFK, Jr. who published an inflammatory article in Rolling Stone containing provable falsehoods) (also see Lyndon Johnson, Jr. Sworn in as George Editor, the Onion's moving tribute to JFK, Jr.'s untimely death)...

...where was I...

...right! Rep. Patrick Kennedy crashed a car in D.C., released the "explanation" that he'd taken Ambien and Phenergan, another medication, and entered rehab, for addiction and depression. Republican reaction: "Another Chappaquiddick!" Tasteful and kind. Democratic reaction: Varied, but one pundit noted that there was virtually no public policy implication of Kennedy's actions and condition. As opposed to simmering Republican scandals. I'm sure reasonable minds are already hard at work, differing.

And in even-more-breaking news, another Friday afternoon announcement. CIA Director Porter Goss resigned unexpectedly. CNN is all over the story... revealing nothing. Liberal bloggers, already baying after the lurid, highly embarassing allegations surrounding scandal-ridden and now jailed Rep. Duke Cunningham (formerly R-California), are on the case. See Project on Government Oversight (POGO blog), which really should have a headline like

POGO: PoGo to Go-Go; Foggo a No Go?

...If only to amuse me. Anyway, they have a short post announcing Goss Out, with an earlier post containing more extensive discussion of influence peddling, corruption in government contracts, and the sleazy activities possibly involved at Names Like "Nine Fingers" and Dusty Foggo Make Even Gov't Contracting Interesting. Fun reading.

Also recommended: War and Piece, which impresses me with the timeliness and access of its posts. Clearly Laura does some actual reporting, like speaking directly to the Public Affairs office, as opposed to merely passing along speculation and innuendo. Not that that isn't fun too. And see this earlier post when the story broke.

The Kennedy story involves public penitence, drugs, violence (or at least a car crash), and a sexy name, CNN is splashing its page with a downcast face and big headlines.

The other story is still rather more in the wild guessing stage. I've seen an unsourced report that "a senior intelligence official" who was previously on Congressional oversight is involved in the scandal, but even though that fits PoGo that doesn't mean it's true. As the Real Media says, "Developing...."

This post is not about my lawsuit. It is a post about MyLawsuit....

Stuart Elliot, writing in the NY Times, catches a mild topicality/ timeliness/ brand identification lift from MySpace and Nuestro Himno in his article "Nowadays It's All Yours, Mine, or Ours."

I'm reminded of two similar faddish naming/ branding/ advertising themes. One was the relatively localized bump that -ster received, around the time that social networking site Friendster boomed. As Wikipedia tells us, Friendster was founded in 2002, and had a boom in popularity during and through 2003. Friendster is now suffering both decline in usage but a far more precipitous drop-off in hotness, as substitutes like myspace rob the phenomenon of the all-important trendiness. Around the same time as F-ster's peak growth, other uses of the -ster popped up, often to mock or evoke the most prominent version. I recall Enemyster and Fiendster, although I don't recall seeing Mob-ster (for friends of Nostra Famiglia, I would assume), Dump-ster (for ex-friends?), or Ham-ster (for pets?).

A much longer-lived phenomenon was the persistent trend of naming movies in the form Xing Y. I don't know that Waiting for Guffman was a particularly significant impetus, but it was early in the trend, perhaps not an innovator but certainly a presager of the main body. Examples include Saving Private Ryan; Saving Silverman; Kissing Jessica Stein; Boxing Helena; Deconstructing Harry. The Volokhs had a post on Gerunding Name. I rather like how clever the comments to the post got. Here's another list of movies with gerundy titles ("Gerunding the Movie Titlings").

In the same vein, I propose MyLawsuit.

You start out with MyProblem. Being bitter, unforgiving, injured, vindictive, and determined, you hire MyLawyer.

You embark on MyDiscovery, perhaps engaging in MyDepositions and MyRequests for Admission. With MyEvidence and MyExpert Witnesses in hand, you can try MySettlement Negotiations or MyArbitration.

And if all else fails, and the lawsuit drives you into penury, there's always MyBankruptcy. Oops, already taken.

In fact, I think Mylawyer.com hopes to take advantage of its nice trendy name. They sell self-service legal forms. I don't buy it for a second. Mylawsuit.com seems to be for sale; smells like a squatter to me.

Still no Google hits for "myjurytrial" though.